Camm v Camm
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH,SIR ROGER ORMROD |
| Judgment Date | 07 December 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1207-1 |
| Docket Number | 82/0473 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 December 1982 |
[1982] EWCA Civ J1207-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
(From Order of Mr. Justice Lincoln of 28th July 1982 in the Family Division)
Royal Courts of Justice
Lord Justice Eveleigh
and
Sir Roger Ormrod
82/0473
MR. MICHAEL THORPE.Q.C., and MR. A. HAIGH-HADDOW (instructed by Messrs Thomas Coombs & Son (Dorchester, Dorset)) appeared on behalf of the Petitioner (Respondent).
MR. M. BRADLEY GOODMAN (instructed by Messrs Phillips & Co, Salisbury, Wilts)) appeared on behalf of the Respondent (Appellant).
I will ask Sir Roger Ormrod to deliver the first judgment.
This is an appeal by the wife, as I shall call her, from an order made by Mr. Justice Lincoln in the Family Division, on 28th July this year, in ancillary proceedings. The order that the learned judge made provided for an order for periodical payments for the wife in the sum of £900, and for the two children in the sum of £1,500.65 each. In the order itself, those two orders are expressed to be interim, but it is common ground that that is a clerical error and they were intended to be normal orders. The learned judge made no order as to costs.
The wife is now appealing from that order, seeking an increase in the amount of periodical payments for herself, and there is a cross appeal by the husband asking that the order should be set aside and that no order for periodical payments should be made.
The learned judge, I should add, also refused leave to appeal, but this court gave leave to appeal at the opening of the hearing yesterday.
This is another of these difficult cases in which the court has to consider how to deal with an agreement made between the parties at the time of the divorce, under which the wife agreed not to ask for periodical payments. There was not order dismissing her claim for periodical payments, and so it is common ground that the matter is open to the court and it was open to the learned judge.
The principles of law, I think, are perfectly clearly understood, and they are commmon ground in this court. At least since the time of Hyman v. Hyman (1929) A.C. 601,it has been clearly established that the parties to divorce proceedings cannot bind the court by any contractual arrangement which has been made between themselves and cannot, therefore, oust the jurisdiction of the court which is conferred by the relevant statute. The principle of that case has been consistently followed thereafter, and it is common ground that the court here has jurisdiction to entertain the wife's claim. As it has jurisdiction, it has to exercise its jurisdiction in accordance with the prevailing statutory provisions, which are section 25 of the Matrimonial Causes Act 1973. But, the problem arises—and it was recognised in Hvman v. Hyman, and has been recognised in all subsequent cases—as to what weight to give in any particular case to the fact that an agreement was entered into by the parties themselves under which the wife would not seek periodical payments for herself. It has been stressed all through those same cases that, the court must attach considerable importance, the amount of importance varying from case to case, to the fact that there was an agreement, because the court, naturally, will not lightly permit parties who have made a contractual agreement between themselves, even if it is not legally enforceable, to depart from that contractual agreement unless some good reason is shown.
I suggested some time ago in the case of Brockwell (which is not reported, but the transcrupt number is 468 of 1975), that the right way to approach these cases now was to regard the fact of entering into a contractual arrangement as part of the conduct which was to be taken into account in arriving at a just result under the latter part of section 25. That seems a convenient way of approaching the problem in any event. But it is much more difficult in practice than in theory to decide what weight to give to the fact of this agreement having been entered into.
The learned judge, perhaps a little reluctantly, came to the conclusion that this was not a case in which the wife should be held to her agreement and, therefore, not a case in which to reject her application for periodical payments altogether. That left him with the further difficult problem of evaluating the whole history of the case, and all the circumstances, in order to arrive at a figure which would be just between the parties. No question of practicability arises in this case.
The learned judge decided in the end to make the order, as I have indicated, in the sum of £900 for the wife, and he also substantially increased the existing interim order in favour of the children, putting them up to the maximum of the tax free level. He increased the available income to the wife quite appreciably, because the order had been for about £1,000 a year for each child; so he in effect gave the wife about an extra £2,000.
This problem was considered by this court in some depth in the case of Edgar v. Edgar (1980) 1 WLR, 410, to which we have been referred, and I do not think any useful purpose will be served in this judgment by repeating what I and Lord Justice Oliver said in giving judgment in that case. In view of one observation by the learned judge, perhaps I should say that I do not wish to resile from one phrase, on page 1417, where I set out some of the matters which the court must take into account in evaluating the importance of the "contract". I said there "Undue pressure by one side, exploitation of the dominant position to secure an unreasonable advantage, inadequate knowledge"—then the phrase "possibly bad legal advice"—"an important change of circumstances, unforeseen or overlooked at the time of making the agreement are all relevant to the question of justice between the parties", and I made it clear that that was not, of course, an exclusive list. I still think it was right to refer to bad legal advice, although in that passage I was not thinking in terms of negligence by the solicitor. The unfortunate fact in this case was that the hearing below was occupied to a considerable extent in questioning the wife's solicitor, who is himself the defendant in a pending action for negligence which may or may not be proceeded with. In that passage I certainly was not thinking in terms of negligence: I was thinking in terms of exactly what I said, "bad legal advice", and we are all familiar with cases in which parties are badly advised. That is to say, it is not necessarily negligent advice to take a course or permit a client to take a course which a more experienced, or a stronger minded legal adviser would have discouraged. It seems to me plain if one compares the facts of this case with the facts in Edgar v. Edgar that the quality of legal advice on which parties act is of some relevance to the justice of the case. In Edgar v. Edgar the wife was fully legally advised, and strongly advised not to enter into the deed of separation containing a particular clause which limited her capital thereafter; but, nonetheless, she went ahead. In this case there was very much less clear legal advice by her solicitor and the whole matter was dealt with, obviously, on quite a different level. In Edgar v. Edgar the whole thing was formally negotiated between solicitors for a period of months, and there could have been no possible misunderstanding or shadow of a doubt in the mind of the wife when she elected to ignore the legal advice she had been given. In this case there is no question, I think, of the wife ignoring any legal advice. It is said that she was told, somehow, that the effect of entering into this agreement might deprive her of all future maintenance, but, like Mr. Thorpe, I would have expected that at least she would have been required by her solicitor to sign a document which would make it absolutely clear that she knew what she was doing. I think the quality of legal advice is relevant on the issue of justice, but not in terms of negligent actions. That is the situation, so far as the wife is concerned, with which we now have to deal.
The relevant facts of the case can be set out quite shortly. The parties were married in 1962. The husband at that time was a recently qualified doctor, and the wife was in fact pregnant at that time, a fact which may well have affected the whole subsequent marriage. They had eventually three children: Charles who was born in February 1963, who is 19 and is now attending the Chelsea Art College: Sarah who was born on 31st December 1964 who is 17 and who is at a convent school; and Felicity who was born on 1st October, and who is now 15: she was formerly at the convent school, but she has now transferred to a state school. For reasons which it is not necessary to go into here, no school fees were payable in respect of Sarah at the convent, but full school fees were payable in respect of Felicity so long as she was at that school.
It is quite plain from the outline of the evidence that we have, and the history of the marriage, that it was an unhappy one for various reasons, into which it is again unnecessary to go in detail. Certainly by 1975 the wife was acutely miserable and unhappy; she had consulted, I think at the husband's suggestion, a psychiatrist and at that time would appear to have committed six casual acts of adultery. The. husband himself had committed adultery over a period of about a fortnight also in 1975. It is plain that the marriage had completely broken down by the spring of 1975.
There were discussions between the...
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